Summary

St.George and Ian Craig Press engaged in a mediation. At the
conclusion of the mediation, a settlement deed was executed by the
parties.

Unbeknownst to St.George, Mr Press included the letters
"V.C" in small type next to his signature –
apparently an abbreviation for the Latin phrase - vi coactus - by
which Mr Press alleged that he meant that he was signing the deed
under duress.

As part of the settlement deed, Mr Press executed consent orders
in favour of St.George which St.George agreed not to file with the
Court if Mr Press carried out certain actions.

Mr Press failed to carry out those actions and St.George sought
to file the consent orders. The filing of the consent orders was
opposed by Mr Press. St.George made an application pursuant to
section 73 of the Civil Procedure Act for an order enforcing the
settlement reached at mediation.

Kemp Strang acted on behalf of St.George in this matter which
was heard by his Honour, Justice Fagan on 7 June 2017 with judgment
entered in favour of St.George on the same day.

Key facts

St.George provided various facilities to Mr Press which were
supported by a mortgage over real property.

Events of default were committed under the facilities and
St.George commenced proceedings for debt and possession of the
property.

Mr Press filed a defence and cross-claim against St.George in
the proceedings seeking, among other orders, to have the mortgage
set aside.

The parties attended a mediation on 27 September 2016 and agreed
to resolve the disputes between them in the proceedings.

A deed of settlement was signed at the mediation which
contemplated that Mr Press would, among other things, repay the
debt owed to St.George by 31 March 2017. In the event that Mr Press
complied with his obligations under the deed, St.George agreed to
discontinue the proceedings against him. However, if Mr Press
failed to comply with his obligations under the deed, he agreed to
give vacant possession of the property to St.George and authorised
St.George to file a consent order which provided for judgment in
favour of St.George and possession of the property.

The deed also included the following terms:

Mr Press acknowledged that he entered into the deed
"fully and freely after considering the terms in
it" and "after receiving legal and financial
advice regarding the terms and conditions" of the deed;
and

there was a cooling off period which allowed Mr Press to
rescind the agreement at any time in the 8 days following the
mediation.

Mr Press did not exercise his cooling off rights and
subsequently failed to repay the debt owed to St.George by 31 March
2017. St.George filed the consent orders with the Court on that
day.

Prior to the consent orders being entered by the Court, Mr Press
alleged that, among other things, he had repaid the debt owed to
St.George by way of tender of a Promissory Note and that the
consent orders and the deed had otherwise been signed under duress.
He said that the perceived duress was evidenced by the initials
"VC" next to his signature on each of those documents. VC
is an abbreviation for a Latin maxim "vi
coactus" meaning having been compelled. Mr Press also
alleged that the threat of being dispossessed from his property
meant that he only agreed to enter into the deed with St.George
because he felt that he had no other option and was compelled to do
so.

St.George filed a notice of motion seeking orders to give effect
to the settlement between the parties.

The Judgment

Fagan J determined that the claims made against St.George in
relation to the Promissory Note were preposterous and dismissed
those claims.

In order to make out a claim of duress, it is necessary to show
that there has been threatened or actual unlawful conduct.
Financial pressure is not sufficient to amount to duress.

Fagan J found that Mr Press did not execute the deed under any
pressure, let alone under the pressure of actual or threatened
unlawful action. Under cross-examination, Mr Press agreed that he
had read the deed before signing it and understood that he could
"walk away from the deal" during the cooling off period
under the deed. He determined that Mr Press would have likely
exercised his right to rescind within the cooling off period if he
had been subject to any illegitimate pressure during the
mediation.

In addition, his Honour found that Mr Press' ongoing
promises to repay the debt by 31 March 2017 and the fact that he
complied with a number of his other obligations under the deed were
inconsistent with the alleged duress.

Further, his Honour found that where an allegation of duress is
made, it is necessary to describe the action and words of the
person who is making unlawful threats or acting in an unlawful
manner. It is not enough to simply state that a person "was
under duress". To sustain a finding of duress, it is necessary
to put into evidence details of the unlawful conduct.

Fagan J considered that the meaning of the initials
"VC" next to Mr Press' signature on the deed and
consent orders was not a matter of common understanding amongst
legal professionals and the layman and found that Mr Press had
acted disingenuously at the mediation in noting his signature in
this manner without notifying St.George of his intentions during
the mediation or in later correspondence with St.George and/or Kemp
Strang.

As a result, Fagan J declared that the proceedings had been
settled between the parties pursuant to the terms of the deed and
entered judgment in favour of St.George for debt and possession of
the property.

Key Points You Need to Know

The decision affirms that:

Conduct capable of constituting duress is limited to threatened
or actual unlawful conduct.

Financial pressure does not amount to duress. The pressure must
be one of a kind which the law does not regard as legitimate.

The Court has ample power to confirm terms of settlement where
a party seeks to renege on promises made by them in a deed.

The decision is comforting to financial institutions that engage
in mediation with their customers and others who seek to end
litigation by way of mediation. Whilst there is undeniable pressure
in mediations, that pressure will not in and of itself give rise to
a defence of duress at a later time.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

Kemp Strang has received acknowledgements for the quality of
our work in the most recent editions of Chambers & Partners,
Best Lawyers and IFLR1000.

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